OFSCDRS 1997

The applicant was injured in a motor vehicle accident and sought statutory accident benefits.

A dispute arose over the calculation of his Income Replacement Benefits (IRB), specifically whether he was an employee or self-employed at the time of the accident.

The arbitrator found that the applicant had structured his financial affairs to be an independent contractor for tax purposes, and therefore must be treated as self-employed under the Schedule, resulting in a lower IRB.

Although the insurer had overpaid the applicant based on his initial claim of employment, the arbitrator held the applicant was not required to repay the overpayment because there was no wilful misrepresentation.

Claims for dependent care expenses, medical/accounting reports, and a special award were dismissed.

The applicant was awarded the expenses of the arbitration.

The applicant was injured in a motor vehicle accident and received statutory accident benefits.

The insurer suspended her benefits after she failed to attend a rescheduled insurer's examination.

The arbitrator found the suspension was unlawful because the insurer applied the wrong version of the Statutory Accident Benefits Schedule and failed to schedule the examination at a convenient time, ignoring her psychologist's advice that she was too emotionally fragile to attend.

The arbitrator awarded caregiver benefits up to the two-year mark, ongoing housekeeping expenses, vehicle modifications to provide automatic transmissions, and various medical and rehabilitation expenses.

A 40% special award was granted against the insurer for unreasonably withholding benefits.

The Applicant was injured when he slipped on ice while approaching his motor vehicle to unlock it.

The Insurer denied his claim for statutory accident benefits, and the Applicant failed to submit his application within the required 90-day period.

On a preliminary issue hearing, the Arbitrator held that the Applicant had a reasonable excuse for the delay because the Insurer failed to provide written information to assist him in applying for benefits, as required by the Schedule.

Furthermore, applying the Amos test, the Arbitrator found that attempting to unlock a car door is an ordinary and well-known activity to which an automobile can be put, and there was a sufficient nexus between the use of the vehicle and the injury.

The Applicant was therefore injured in an 'accident' and entitled to proceed to arbitration.

The applicant was injured in a motor vehicle accident and received weekly income benefits until they were terminated by the insurer.

The applicant applied for arbitration.

Prior to the hearing, the applicant's counsel was removed from the record after losing contact with her.

The applicant failed to attend the scheduled arbitration hearing.

The arbitrator proceeded in her absence pursuant to Rule 34.5 of the Dispute Resolution Practice Code.

As the applicant failed to present evidence or discharge her onus of proof, the application for ongoing weekly income benefits was dismissed.

The applicant was injured in a motor vehicle accident and claimed weekly benefits and yard maintenance expenses from his insurer.

The insurer denied the claims, arguing the applicant's disability was not caused by the accident and that he lacked motivation.

The arbitrator found that the accident aggravated the applicant's pre-existing spinal degeneration, causing a substantial inability to perform his essential daily tasks, including home renovations and strenuous recreational activities.

The arbitrator awarded three years of weekly benefits and partial yard maintenance expenses.

Furthermore, the arbitrator ordered the insurer to pay a $10,000 special award under section 282(10) of the Insurance Act, finding that the insurer's continued denial of the claim after receiving objective MRI evidence was unreasonable.

The insurer appealed an arbitration decision that found the insured met the post-156 week test for weekly income benefits and ordered the insurer to pay ongoing benefits and certain medical and rehabilitation accounts.

The insurer argued the arbitrator failed to properly analyze surveillance evidence and conflicting medical opinions regarding the insured's pain-based limitations.

The Director's Delegate dismissed the appeal, finding that the arbitrator provided an adequate explanation for her conclusions, properly considered the surveillance evidence, and reasonably determined that the disputed accounts were necessary expenses.

The appellant insurer appealed an arbitration decision finding that the respondent was not excluded from receiving weekly statutory accident benefits.

The respondent had been convicted of failing to produce an insurance card, but a charge of driving without insurance was stayed under the Kienapple principle.

The Director of Arbitrations dismissed the appeal, holding that the exclusion under paragraph 17(1)(c) of the Schedule requires a specific conviction for driving without insurance, which did not occur.

Furthermore, the exclusion under paragraph 17(1)(d) for driving while not authorized by law relates to licensing issues, not insurance status.

The applicant was injured in a motor vehicle accident and received statutory accident benefits until the insurer terminated them.

The applicant failed to attend the arbitration hearing, and his representative's request to withdraw was denied due to lack of notice to the client and delay.

The arbitrator determined the applicant was self-employed but, lacking evidence of business expenses, set the income replacement benefit at the minimum of $185 per week.

The applicant was found not entitled to benefits after the termination date, and claims for a special award and expenses were denied.

The insurer's request for the return of its assessment fee was also denied as the application was not found to be frivolous or vexatious.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits, including weekly income replacement benefits.

The insurer refused to pay, and the applicant brought a motion for an interim order for payment of $185 per week pending arbitration.

The arbitrator dismissed the motion, finding that while the medical evidence established a substantial inability to perform pre-accident work, there was evidence the applicant had returned to modified work and received post-accident income.

The applicant failed to provide sufficient financial information to establish a prima facie case for entitlement to the minimum benefit after accounting for potential deductions.

The appellant appealed an arbitrator's decision regarding the calculation of weekly income benefits under the Statutory Accident Benefits Schedule.

The appellant argued that his income should be averaged only over the 33 weeks he actually worked in the 52 weeks preceding the accident, rather than the full 52 weeks.

He also argued that the arbitrator erred by not following a previous appellate decision, raising the issue of whether stare decisis applies to the tribunal.

The Director of Arbitrations held that appellate decisions of the Director are binding on first-instance arbitrators.

However, the Director agreed with the arbitrator's interpretation of the Schedule, finding that the gross weekly income must be averaged over the full 52 weeks, regardless of periods of unemployment.

The appeal was dismissed.

Both parties appealed an arbitration decision regarding the insured's entitlement to weekly income benefits beyond 156 weeks following a motor vehicle accident.

The insurer appealed the finding that the insured met the post-156 week test and the order to pay a $5,000 special award for unreasonably terminating benefits.

The insured appealed the amount of the special award and the deduction of 100 per cent of her collateral disability benefits.

The Director's Delegate dismissed both appeals, finding that the arbitrator's conclusions on entitlement and the special award were supported by the evidence, and that the plain meaning of the Schedule supported the 100 per cent deduction of collateral benefits.

The appellant applied for death benefits following the death of her common-law spouse.

The insurer paid a spousal benefit but failed to provide the required informational material explaining available benefits.

The appellant later applied for and received a dependant's benefit, but the insurer only paid interest from the date of the second application.

On appeal, the Director's Delegate held that the insurer breached its statutory obligation to provide information under s. 59(2) of the Statutory Accident Benefits Schedule, which prejudiced the appellant.

The appeal was allowed, and the insurer was ordered to pay interest on the dependant's benefit from 30 days after the initial application.

The applicant was injured in a motorcycle accident and applied for income replacement benefits (IRBs).

He argued that the proceeds from the sale of a property he renovated should be treated as business income from self-employment and included in the calculation of his IRBs.

The insurer argued the proceeds were a capital gain and should be excluded.

The arbitrator found that the applicant was not self-employed in a business related to the property, as he did not have an established business location, did not register a business, and the transaction was not obviously commercial in nature.

The proceeds were determined to be a capital gain and excluded from the IRB calculation.

The applicant was awarded his expenses for the arbitration proceeding due to the complexity of the issues.

The parties cross-appealed an arbitration decision regarding weekly income benefits and arbitration expenses following a motor vehicle accident.

The insured appealed the denial of weekly income benefits after September 5, 1994, and the refusal to adjourn the hearing to cross-examine the insurer's medical expert.

The insurer appealed the order requiring it to pay the insured's arbitration expenses, arguing that November 1996 amendments to the Insurance Act should have been applied.

The Director's Delegate dismissed both appeals, finding that the arbitrator's conclusions on benefits were supported by the evidence, the refusal to adjourn was a reasonable exercise of authority, and the new expense provisions did not apply retroactively to proceedings commenced before the amendments.

The insured was awarded $250 in appeal expenses for responding to the insurer's appeal.

The applicant sought ongoing weekly income benefits and medical-rehabilitation expenses following a 1991 motor vehicle accident.

The insurer had terminated benefits in 1995 and sought repayment of overpaid amounts.

The arbitrator found that the applicant, with the assistance of his doctor, had shifted responsibility for a pre-existing back condition to the minor 1991 accident.

Video surveillance demonstrated the applicant engaging in vigorous exercise inconsistent with his claimed disability.

The arbitrator dismissed the claims for ongoing benefits and expenses, determined the correct quantum of weekly benefits based on pre-accident income, and ordered the applicant to repay $66,967.56 in overpaid benefits plus interest, finding he had deliberately misled the insurer.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits from Wawanesa, who denied coverage alleging the policy was void due to misrepresentation and had been terminated prior to the accident.

The applicant then applied to Guarantee, the insurer of the other vehicle, who argued Wawanesa was responsible.

The arbitrator held that Ontario Regulation 283/95 did not apply retroactively to this dispute.

The arbitrator further found that Wawanesa failed to properly terminate the policy because the premium refund did not accompany the notice of termination as required by statutory condition 12 of the Insurance Act.

Additionally, the applicant's misrepresentations did not render the policy void ab initio for the purpose of statutory accident benefits.

Wawanesa was ordered to pay the benefits.

The applicant was injured in a motor vehicle accident and received statutory accident benefits.

He later signed a full and final release in exchange for a $50,000 lump sum payment.

He subsequently sought further benefits, arguing the agreement should be set aside due to misrepresentation, undue influence, and unconscionability.

The Arbitrator found that the insurer did not misrepresent the potential for future benefits, did not exercise undue influence, and that the settlement was not unconscionable.

The agreement was held to be binding, and the application for further benefits was dismissed.

The applicant was struck by a motor vehicle while walking in a pedestrian crosswalk, sustaining serious injuries.

She received statutory accident benefits, including Other Disability Benefits (ODBs), which the insurer later terminated.

At arbitration, the insurer sought an adjournment for a further medical examination, which was denied as the arbitrator lacked authority to compel attendance.

The arbitrator found the applicant was not entitled to post-104 week ODBs because she did not suffer a complete inability to carry on a normal life, as she could still engage in a substantial number of pre-accident activities.

However, the arbitrator awarded a special award of $2,750 because the insurer had unreasonably delayed pre-104 week ODB payments by applying the wrong disability test when it initially terminated benefits.

The applicant was injured in a snowmobile accident and received income replacement benefits (IRBs) for 104 weeks.

The insurer then terminated IRBs and offered a 'nil' loss of earning capacity (LEC) benefit.

The applicant disputed the LEC benefit amount and claimed entitlement to ongoing IRBs pending the dispute's resolution.

The arbitrator held that the pre-1995 version of the Statutory Accident Benefits Schedule applied, entitling the applicant to ongoing IRBs pending resolution.

The arbitrator determined the applicant's pre-accident earning capacity based on his intermittent employment history and his residual earning capacity based on an electronics assembler position, resulting in a weekly LEC benefit of $153.41.

The insurer was ordered to pay the ongoing IRBs, the LEC benefit, and the applicant's arbitration expenses.

The appellant insurer appealed an arbitration order finding it responsible for paying statutory accident benefits to the respondent driver.

The driver was injured in a single-vehicle accident while operating a commercial truck made available for his regular use by his employer.

The Director's Delegate dismissed the appeal, holding that the driver was an 'insured person' under his personal automobile policy because the accident involved 'another automobile' within the meaning of the Statutory Accident Benefits Schedule.

Furthermore, the deeming provisions of the Schedule did not alter the priority rules under section 268(2) of the Insurance Act.